3 April 2003 Edition

High Court rules Castlerea 5 qualify, but no release

BY ROISIN DE ROSA

Last Thursday, 27 March, Mr Justice Peart delivered his long awaited judgement in the High Court in Dublin on the application for early release under the Good Friday Agreement of two of the republican prisoners known as the Castlerea 5.

Michael O'Neill, sentenced to eleven years for manslaughter, and John Quinn, sentenced to six years for conspiracy to commit a robbery in 1996, had been given leave by Mr Justice Butler to apply to the High Court by way of Judicial Review on 30 July 2001.

Their application sought that the Minister of Justice determine that they are qualifying prisoners under the Good Friday Agreement and/or the Criminal Justice (Release of Prisoners) Act 1998; and that they are entitled to be released.

Further, they sought the entitlement to have their applications "decided by a person who is not tainted by any prejudgement of their applications", and that they be "entitled to equality of treatment as compared with others in comparable circumstances".

They held that they have not been afforded such treatment, and this is contrary to Article 40.1 of the Constitution and/or Article 14 of the European Convention on Human Rights and Article 26 of the International Covenant on Civil and Political rights.

In his 40-page reserved judgement, Mr Justice Peart found that the applicants "do fall within the category of persons who would be eligible for release under the relevant provisions". The Justice stated that: "They are affiliated to organisations which have maintained and are maintaining an unequivocal ceasefire. They are convicted of offences similar to scheduled offences in Northern Ireland. The offences in questions were committed prior to 10 April, 1998."

Mr Justice Peart concluded that the Minister, in exercising his powers of release, is exercising an executive function of a discretionary nature, and that "the courts can only intervene where it is established that the powers are being exercised in a manner that is in breach of the constitutional obligation of the executive not to exercise them in a capricious, arbitrary or unjust way".

However, since the minister's discretion is unfettered by the legislation, the judge found that there is no obligation on the Minister to consider any particular person for release, or thereupon to seek the advice of the Release of Prisoners Commission established under the 1998 Act. "Since there is no obligation on the Minister to enter upon such consideration of any particular applicants, he cannot be said to have acted capriciously, arbitrarily or unjustly."

In a word, because the Minister didn't act at all, and under the legislation he wasn't obliged to, he cannot be said to have acted unjustly.

John O'Donoghue, Justice Minister at the time, stated, prior even to the conviction of the Castlerea 5, that those involved "will not have the benefit of the early release terms contained in the Good Friday Agreement".

As part of an affidavit which solicitor, Michael Farrell, submitted in support of the application for release, taken from the Dáil Report, dated 9 February 1999, John O'Donoghue said: "Moreover, the Commission can only consider cases of persons specified by the Minister to be 'qualifying prisoners' and obviously I do not regard the persons involved as falling into that category so the question of referring their cases to the Commission will not arise."

But Mr Justice Peart, in his judgement last week, found to his satisfaction that the applicants, "were they to be considered for release by the Minister, do fall within the category of persons who would be eligible for release under the relevant provision".

The Good Friday Agreement states that "any qualifying prisoner, who remained in custody two years after the commencement of the scheme (early release of prisoners), would be released at that point" - a period which expired on or about 28 July 2000.

Sinn Féin TD Martin Ferris spoke several times at the Ard Fheis last weekend, to resounding applause of the delegates, regarding the obligation of the Dublin government to release the Castlerea 5. "The court recognised that the men were 'qualifying prisoners' under the Agreement," he said, and he again called on the government to "honour their commitments and to release the men".